Citation Nr: 0527321
Decision Date: 10/07/05 Archive Date: 10/17/05
DOCKET NO. 04-13 485 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
A. J. Turnipseed, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1965 to
September 1967.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 2003 rating determination of
the Department of Veterans Affairs (VA) Regional Office
(RO) in Albuquerque, New Mexico.
FINDING OF FACT
The competent and probative medical evidence of record
preponderates against a finding that the veteran has
current post-traumatic stress disorder (PTSD) which is
causally related to service.
CONCLUSION OF LAW
Post-traumatic stress disorder was not incurred in or
aggravated by active military service. 38 U.S.C.A.
§§ 1101, 1110 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303,
3.304 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran's DD Form 214 reflects that he received
numerous awards and decorations, including the Vietnam
Service Medal w/2 Bronze Service Stars and the Combat
Infantryman Badge. The DD Form 214 also shows that he
served in the U.S. Army-Vietnam for one year and 11 days.
Service medical records (SMRs) indicate that, at the
veteran's pre-induction medical examination in September
1965, he was noted to be psychiatrically normal. On the
associated report of medical history, the veteran checked
"no" as to his currently having, or having previously had,
depression or excessive worry. The SMRs reveal no
complaints, treatment, or findings related to mental
disorders. When examined for separation in July 1967, the
veteran was noted to be psychiatrically normal, and he
reported having no history of depression or excessive
worry. In September 1967, the veteran submitted a
statement indicating there had been no change in his
medical conditions since his separation examination.
VA out-patient progress notes dated November to December
2000 show the veteran was seen at the VA Medical Center in
El Paso, Texas. The records show he was noted to have no
history of medical problems or treatment from another
physician. It was also noted that the veteran had pain in
his back, but otherwise had no problems.
A February 2003 lay statement from the veteran's spouse,
D.B.M., indicates that they have known each other for more
than forty years and got married one year after he returned
from Vietnam. D.B.M. indicated that the veteran would
never discuss his experiences and further indicated "this
is the first time we have really sat down and talked about
it." D.B.M. also stated, in pertinent part, "he had all
of this bottled inside, for so many years. Now I
understand the moodiness and changes in his behavior."
In a February 2003 written statement, the veteran indicated
that he is constantly reminded, through his nightmares, of
the things he saw and had to do in Vietnam. He also stated
that the sound of fireworks or a sudden backfire of a car
brings back memories. In an additional written statement
dated February 2003, the veteran indicated he was stationed
out of Bien Hua, where his outfit did perimeter watch and
patrols, and received incoming mortar fire on a daily
basis. The veteran also stated that due to his PTSD he
cannot remember things, and is unable to perform under
stressful conditions.
In March 2003, the veteran submitted a formal claim for
entitlement to service connection for PTSD and problems
with his back. He indicated that his PTSD began in 1965
due to combat in Vietnam. The veteran later submitted
claims for various other conditions, all of which,
including PTSD and the back condition, were adjudicated in
the July 2003 rating determination, which granted service
connection for several disabilities, with a combuned 60
percent rating, and also granted a permanent and total
rating for non-service-connected pension purposes. The
veteran later perfected an appeal as to only the PTSD
claim.
The veteran was afforded a VA Compensation and Pension
Examination for PTSD in April 2003. The examiner indicated
the claims file was not available but the medical records
were reviewed. The examiner noted the veteran was sent to
Vietnam in about November 1966 with the 173rd Airborne. The
veteran detailed his military history as follows:
We were stationed about five miles from Vinh
Hua [sic; probably Bien Hua]. I was a gunner
on a 4.2 mm [sic; should be 4.2 in) mortar. My
main problem was my back. That base plate was
very heavy so I hurt my back over there. We
took some fire at times but we were mostly in
the rear firing white phosphorus and delayed
high explosive rounds. They did try to get us
one time with 60 mm mortars and sniper fire but
I was not hurt or wounded.
The examiner also noted the veteran stated "Why am I
here[?] I don't have any psychiatric problems that I know
of. I used to have some dreams years ago but not anymore.
My main problem is with my back, my diabetes, and my high
blood pressure."
On examination, the veteran was noted to relate in a
coherent and logical manner, with no sign of thought or
mood disorder. His thinking was clear and linear and his
mood was pleasant and euthymic. The veteran denied feeling
depressed, having unusual crying spells, or having feelings
of hopelessness. The examiner noted the veteran "did not
complain of excessive anxiety, flashbacks, intrusive
thoughts or alienation from self or society." The
examiner also noted the veteran has never been hospitalized
or treated for a psychiatric condition and takes no
psychiatric medications.
The examiner indicated that psychometric testing was deemed
unnecessary, noting the veteran was competent for VA
purposes and had no significant psychiatric problems at the
time. As to a diagnosis, the examiner indicated the
veteran did not have a mental disorder and his stressors
were noted as "normal life stress."
VA outpatient progress notes dated April to November 2003
show the veteran was seen for various conditions, including
PTSD. In September 2003, the veteran related "he gets
sentimental, flashbacks, nightmares, irritability, sleep
disturbances, isolating since his sons were deployed
during" Operation Desert Storm. The examiner noted the
veteran was three miles out of "Vinh Hua" and that he
described having been in many firefights. The examiner
noted the veteran had no psychotic symptoms, his speech was
normal, and he had a sad and tearful affect. The examiner
also noted the veteran's thought process was focused on his
Vietnam experience, and the assessment was "anxiety state,
NOS [not otherwise specified]."
In November 2003, the veteran was seen to determine the
need for a PTSD evaluation. The examiner noted the
veteran's service as a gunner and also noted the veteran
went to Vietnam "with few life experiences so there was a
considerable culture shock." The veteran related "having
experienced a great deal of anxiety with respect to his
tour in Vietnam" as well as "coming under fire several
times." The examiner further noted the veteran cannot
recall any particular traumatic event during his time in
Vietnam." The assessment was "anxiety disorder, [not
otherwise specified]."
In a written statement dated November 2003, the veteran
indicated he was submitting new evidence as to his PTSD
claim. In support of his claim, the veteran submitted lay
statements from S.J.M., a colleague who currently works
with the veteran, and D.B.M., his wife.
The November 2003 lay statement from S.J.M. details the
veteran's work performance as an Educational Assistant in
the Las Cruces Public Schools Building Trades Program. The
veteran's duties entail interacting with "regular and
special education students." S.J.M. stated that the
veteran had "some difficulty adapting to the class
environment with teenagers," which "manifested itself in a
lack of patience with, and sometimes unfair criticism of
the students." S.J.M. further stated that the veteran's
"occasional unpredictable mood swings[,] from a relatively
congenial to uncongenial attitude[,] ha[ve] contributed to
creating a difficult work environment."
In an undated lay statement, D.B.M., the veteran's spouse,
indicated that the veteran becomes very offensive when
household problems arise and that he cannot sit calmly to
discuss the problems. D.B.M. also stated that she tries to
console the veteran when he has bad dreams but he does not
want to discuss them. D.B.M indicated that the veteran's
sons have tried to talk to him, but he pushes them away
indicating that they cannot understand how he feels.
The veteran filed his substantive appeal in April 2004, at
which time the veteran indicated that his military
occupational specialty (MOS) was combat infantry and that
he had seen "a lot of combat." The veteran further
indicated that his not being wounded in combat does not
mean he does not have PTSD.
The veteran's representative submitted a statement dated
May 2004, in which he stated that the veteran submitted
supporting statements from his spouse and friend relating
their opinions of the veteran's mental condition. The
representative reiterated the spouse's statement that no
one can get the veteran to open up and talk about what is
bothering him. The representative stated, "This is common
among true combat veterans who suffer from PTSD. They
refuse to admit[ ] that there is anything wrong and refuse
treatment." The representative also stated that the claim
should be remanded in order for a "more thorough
psychological exam" to be conducted to determine if the
veteran meets the criteria for PTSD because the veteran's
initial exam is not enough, due to his reluctance to relate
his problems.
II. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating
a claim for VA benefits. 38 U.S.C.A. § 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2004).
Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper
VCAA notice must inform the claimant of any information and
evidence not of record (1) that is necessary to
substantiate the claim; (2) that VA will seek to provide;
and (3) that the claimant is expected to provide; and (4)
must ask the claimant to provide any evidence in his or her
possession that pertains to the claim, in accordance with
38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to
a claimant before the initial unfavorable agency of
original jurisdiction (AOJ) decision on a claim. Pelegrini
v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v.
Nicholson, 19 Vet. App. 103 (2005).
In the Mayfield case, the U.S. Court of Appeals for
Veterans Claims (Court) addressed the meaning of
prejudicial error (38 U.S.C.A. § 7261(b)), what burden each
party bears with regard to the Court's taking due account
of the rule of prejudicial error, and the application of
prejudicial error in the context of the VCAA duty-to-notify
(38 U.S.C.A. § 5103(a)). Considering the decisions of the
Court in Pelegrini and Mayfield, the Board finds that the
requirements of the VCAA have been satisfied in this
matter, as discussed below.
The record shows the veteran has been notified of the
applicable laws and regulations which set forth the
criteria for entitlement to service connection for PTSD.
In March 2003, the RO informed the veteran of the types of
evidence needed to substantiate his claim for PTSD and its
duty to assist him in substantiating his claim under the
VCAA.
While the March 2003 letter did not explicitly ask the
veteran to provide "any evidence in [his] possession that
pertain[s]" to his claim, see 38 C.F.R. § 3.159(b)(1), the
March 2003 letter specifically asked the veteran to send
any medical reports that he had. In addition, the January
2004 Statement of the Case (SOC) contains the complete text
of 38 C.F.R. § 3.159(b)(1), which includes such notice.
Under these circumstances, the Board is satisfied that the
veteran has been adequately informed of the need to submit
relevant evidence in his possession.
Although the veteran was not given complete notification of
the VCAA requirements until after the initial unfavorable
AOJ decision, he has not been prejudiced thereby. The
veteran responded to the RO's communications with
additional evidence and argument, thus curing (or rendering
harmless) any previous omissions. In addition, the Board
notes that a substantial body of evidence was developed
with respect to the veteran's claim. Likewise, it appears
that all obtainable evidence identified by the veteran
relative to his claim has been obtained and associated with
the claims file, and that neither he nor his representative
have identified any other pertinent evidence, not already
of record, which would need to be obtained for a fair
disposition of this appeal. For these reasons, any failure
in the timing or language of VCAA notice by the RO
constituted harmless error.
Accordingly, we find that VA has satisfied its duty to
assist the veteran in apprising him as to the evidence
needed, and in obtaining evidence pertinent to his claim
under the VCAA. The Board, therefore, finds that no useful
purpose would be served in remanding this matter for more
development. Such a remand would result in unnecessarily
imposing additional burdens on the VA, with no additional
benefits flowing to the veteran. The Court has held that
such remands are to be avoided. See Winters v. West, 12
Vet. App. 203 (1999) (en banc), vacated on other grounds
sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000);
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis
v. Brown, 6 Vet. App. 426, 430 (1994). In fact, the Court
has stated, "the VCAA is a reason to remand many, many
claims, but it is not an excuse to remand all claims."
Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en
banc).
It is the Board's responsibility to evaluate the entire
record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002).
When there is an approximate balance in the evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each issue shall be given to the claimant.
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102
(2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53
(1990), the Court held that an appellant need only
demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail. The
Court has also stated, "[i]t is clear that to deny a claim
on its merits, the evidence must preponderate against the
claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996)
(citing Gilbert, supra, 54).
III. Analysis
In order for service connection to be awarded for PTSD,
three elements must be present: (1) a current medical
diagnosis of PTSD; (2) medical evidence of a causal nexus
between current symptomatology and a claimed in-service
stressor; and (3) credible supporting evidence that the
claimed in-service stressor actually occurred. 38 C.F.R.
§ 3.304(f) (2004); Cohen v. Brown, 10 Vet. App. 128 (1997).
With respect to the second element, if the evidence shows
that the veteran did not serve in combat with enemy forces
during service, or if there is a determination that the
veteran engaged in combat but the claimed stressor is not
related to such combat, there must be independent evidence
to corroborate the veteran's statement as to the occurrence
of the claimed stressor. Doran v. Brown, 6 Vet. App. 283,
289 (1994). The veteran's testimony, by itself, cannot, as
a matter of law, establish the occurrence of a non-combat
stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166
(1996).
In the present case, the Board notes the veteran was
awarded the Combat Infantryman Badge (CIB), which is
sufficient evidence to concede the veteran's combat
stressors, and therefore, satisfies the third element. The
issue then arises as to whether there is evidence to
satisfy the two remaining elements.
Review of the claims file shows the veteran does not have a
diagnosis of PTSD. His SMRs are silent for any treatment
for or diagnosis of PTSD or any other mental disorder.
Upon evaluation in April 2003, he was noted to be competent
for VA purposes and had no significant psychiatric problems
at the time. The examiner was aware that the purpose of
the examination was to determine whether the veteran had
PTSD. He made a specific finding that the veteran did not
have a mental disorder and his stressors were noted as
"normal life stress." In September 2003, the veteran was
noted to have no psychotic symptoms and the assessment was
of an anxiety state, not PTSD. Likewise, in November 2003,
the veteran's assessment was "anxiety disorder, [not
otherwise specified]."
Without a diagnosis of post-traumatic stress disorder, VA
need not determine whether the evidence of record shows a
causal nexus between alleged current PTSD symptomatology
and a claimed in-service stressor, since the veteran's
claim may only be granted if he has a current diagnosis.
Absent proof of the existence of the disability being
claimed, there can be no valid claim. See Gilpin v. West,
155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104
F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet.
App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141
(1992).
The Board has considered the lay statements submitted by
the veteran in support of his claim, as well as the
statements made by the veteran and his representative
regarding his condition. However, there is no indication
that the veteran, his wife, colleague, or representative,
have the requisite knowledge of medical principles that
would permit them to render an opinion regarding matters
involving medical diagnoses or medical etiology. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).
The Board notes the veteran's representative has requested
that the veteran be afforded a "more thorough
psychological exam" in order to determine whether he has
PTSD. The Board, however, considers the April 2003
examination to have been sufficiently thorough, as it
included a mental status examination and considered the
veteran's subjective complaints and military service.
Although the examiner did not review the claims file, the
examination is adequate because the issue before us is not
whether the veteran had in-service stressors, but whether
he has a current PTSD diagnosis. Moreover, the veteran did
relate to the examiner that he was in combat situations,
and the physician was evaluating him for current indicators
of PTSD. Therefore, the Board finds that any error in not
reviewing the claims file was harmless. The Board also
notes the veteran was seen for PTSD in September and
November 2003, and was subsequently diagnosed with anxiety-
related conditions, not PTSD. Therefore, the Board is
satisfied that the veteran has been adequately evaluated
for PTSD.
In summary, and for the reasons and bases set forth above,
the Board finds that the preponderance of the competent and
probative evidence is against the veteran's claim for
service connection for PTSD, and the benefit-of-the-doubt
doctrine is not for application. See Gilbert, 1 Vet. App.
at 55.
ORDER
Entitlement to service connection for post-traumatic stress
disorder is denied.
_________________________
ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs